Opinion
Civil Action 5:23-2440-JDA-KDW
05-28-2024
Scott Hickey, Plaintiff, v. Martin O'Malley, Commissioner of Social Security,[1]Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Kaymani D. West United States Magistrate
This appeal from a denial of social security benefits is before the court for a Report and Recommendation (“Report”) pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying his claim for Disability Insurance Benefits (“DIB”) pursuant to the Social Security Act (“the Act”). The issues before the court are whether the decision is supported by substantial evidence and whether the Commissioner's decision contains an error of law. For the reasons that follow, the undersigned recommends that the Commissioner's decision be affirmed.
I. Relevant Background
A. Procedural History
On October 3, 2016, Plaintiff protectively filed an application for DIB alleging a disability onset date of October 20, 2015. Tr. 172-73. His application was denied initially, Tr. 74, and upon reconsideration, Tr. 93-94. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), Tr. 105, and a hearing was held on May 14, 2019, in Mauldin, South Carolina before ALJ Gregory M. Wilson, Tr. 32-58. Plaintiff appeared with his attorney and testified; Vocational Expert (“VE”) Carey A. Washington also testified. Id. On July 2, 2019, the ALJ 1 issued an unfavorable decision finding Plaintiff was not disabled. Tr. 7-24, 1962-79. On August 20, 2019, Plaintiff filed a Request for Review with the Appeals Council. Tr. 166-67. After granting Plaintiff an extension, Tr. 2002-04, the Appeals Council denied the request for review on July 28, 2020, Tr. 1-5, 1986-90. On September 24, 2020, Plaintiff filed his Complaint in this court seeking judicial review of the Commissioner's administrative determination. See C/A No. 5:20-cv-3392-TLW, ECF No. 1. The Commissioner filed a Motion to Remand on April 30, 2021. Id., ECF No. 10. The court granted the Motion to Remand in an Order filed May 7, 2021. Tr. 1994, Order in C/A No. 5:20-cv-3392-TLW. On February 16, 2022, the Appeals Council issued an Order remanding the case to the ALJ. Tr. 1996-99.
ALJ Wilson conducted a second administrative hearing on July 27, 2022, Tr. 1935-61, and on August 24, 2022 he issued his decision again denying Plaintiff's claim, Tr. 1901-27. On September 13, 2022 Plaintiff requested an appeal of the final decision. Tr. 2078-79. After granting Plaintiff additional time, Tr. 1896-97, Plaintiff submitted his Written Exceptions on November 1, 2022, arguing the ALJ failed to recognize and resolve conflicts between the VE's testimony and the DOT, Tr. 2150-53. On April 6, 2023, the Appeals Council determined Plaintiff's written exceptions did not provide a basis for changing the ALJ's decision, and the ALJ's decision complied with the Appeals Council's February 2022 remand order. Tr. 1889-94. The Appeals Council declined to assume jurisdiction of the case. Tr. 1889. This made the ALJ's August 2022 decision the final decision of the Commissioner after remand by the court. Tr. 1890. Plaintiff was instructed that if he wanted a federal court to review the Commissioner's final decision after remand by the court, he would need to file a new civil action. Id. Plaintiff brought this action seeking judicial review of the Commissioner's decision in a Complaint filed on June 2, 2023. ECF No. 1.
B. Plaintiff's Background
Born in August 1970, Plaintiff was 45 years old as of his alleged onset date of October 20, 2015. Tr. 211. Plaintiff's November 4, 2016 Disability Report-Adult indicated that Plaintiff completed the 12th grade in 1988, did not attend special education classes, and he completed HVAC training in 1998. Tr. 216. Plaintiff indicated he stopped working on October 20, 2015, because of his medical conditions, which he listed as delusion, “loose” concentration, unable to focus, mind racing, very agitated, no motivation, uncomfortable interacting with others, paranoid, and depressed. Tr. 215. The report indicated Plaintiff was 6' tall, weighed 196 pounds, and his conditions caused him pain or other symptoms. Id. Plaintiff indicated his past relevant work (“PRW”) consisted of building maintenance (June 2006-Oct. 2015). Tr. 216.
Plaintiff testified at his administrative hearing that he completed the 10th grade. Tr. 1944.
In a Disability Report-Appeal dated August 17, 2017, Plaintiff indicated changes in his medical conditions that occurred “9/16-2/17.” Tr. 258. Plaintiff reported major depression, memory loss, bipolar, PTSD, delusions, no motivation, schizophrenia, and ankle fusion. Id. He also indicated that he was hearing voices. Id.
C. Administrative Proceedings
On July 27, 2022, Plaintiff appeared with counsel in Greenville, South Carolina for his second administrative hearing before ALJ Wilson. Tr. 1935. VE Jessica Coles also appeared. Id. Due to the extraordinary circumstances of the coronavirus pandemic, the hearing was conducted telephonically. Tr. 1937-38. Plaintiff's counsel indicated he was awaiting an additional statement from Mr. Flassing. Tr. 1941. After some discussion, the ALJ allowed the record to remain open until August 1, 2022 only to receive the statement from Mr. Flassing. Tr. 1943.
1. Plaintiff's Testimony
In response to questions from the ALJ Plaintiff confirmed his name and address, indicated that he was 52 years old, completed the tenth grade, and he did not obtain a GED. Tr. 1944. Plaintiff testified that he got a certificate in HVAC from a year-long program at Greenville Tech. Id. Plaintiff stated that he attended classes four days a week where he reviewed materials as well as worked on equipment. Tr. 1945. Plaintiff indicated that he is right-handed. He stated that he lived with his wife and his 18-year-old son, and he has not done any work since October 20, 2015. Id.
In response to questions from his attorney regarding problems affecting his ability to work, Plaintiff testified that he has major depression and anxiety that affects his ability to concentrate. Tr. 1945-46. Plaintiff testified that at least once or twice a week he has trouble getting out of bed due to depression. Tr. 1946. Plaintiff stated that he takes Klonopin for his anxiety and another medication for depression and PTSD. Id. Plaintiff indicated that he takes other medications but he did not know what they are because his wife fills his medication bottles. Id. Plaintiff stated he has been on the same medication for seven years. Tr. 1947. Plaintiff testified that he sees Dr. Flassing every three months for his medical problems and has been seeing him consistently since 2019. Id. He stated that he seems him for therapy and prescribing medications. Id. Plaintiff testified that he does not “have any regular friends, just [his] wife and [his] son.” Tr. 1948. Plaintiff testified that since 2019 he spends his days doing things around the house like washing dishes or washing clothes, but he remarked that button-up shirts can set him off with a panic attack. Id. Plaintiff stated that he does not watch very much TV and has no hobbies. Id. As to physical issues, Plaintiff testified that he has issues with his right ankle. Tr. 1949. He stated that “it's as good as it gets, but [he] still ha[s] trouble with it.” Id. Plaintiff indicated that he “can't bike, not that far.” Id. He testified that he could walk for 20 minutes before needing to stop and sit down, and that standing is worse and he can stand 10-15 minutes. Tr. 1949-50. Plaintiff did not indicate any issues with sitting other that “fatigue” from just “sitting around[.]” Tr. 1950. Plaintiff indicated that he has not had any treatment for his ankle since 2019 other than x-rays to ensure the screws were still in place. Id. He stated he does not take any pain medication for his ankle other than Tylenol. Id. Plaintiff testified that he has a flashback twice a week. Tr. 1950-51. He stated that he has panic attacks once or twice a week, but it depends on what he is doing and if he gets frustrated. Tr. 1951. Plaintiff testified that he has problems with reading and spelling and he noticed a decline in his abilities right before he stopped working. Tr. 1951-52.
Mr. Flassing is not a doctor; he is a physician's assistant. See Tr. 1533.
The ALJ asked Plaintiff if he had any problems with his back, and Plaintiff stated that he did not other than “ordinary back problems, but nothing serious.” Tr. 1952. He stated that he does not take any medication for his back other than Tylenol. Id. Plaintiff testified that he has not used alcohol in seven years and does not have seizures; although he had seizures when he stopped drinking, those have gone away. Id. Plaintiff stated that he has acid reflux but as long as he takes his daily medication, he is okay. Tr. 1953. Plaintiff stated that he has not been outside of South Carolina in the past three years; he drives, but “not much”; he does not go to church; he does not cook; he sweeps, but he does not mop or vacuum; he does not take out the trash, do yardwork, or household maintenance; he does not have a garden; he does not hunt or fish; and he is not on social media but he texts his wife and son and uses the internet to look up things. Tr. 1954-55. Plaintiff stated that he goes to the grocery store “about every other week” and has not gone out to eat in “a long time.” Tr. 1955. Plaintiff testified that his son is out of high school, but when he was in school Plaintiff would go to his football games. Id.
2. VE's Testimony
The VE classified the work performed previously by Plaintiff as maintenance mechanic, Dictionary of Occupational Titles (“DOT”) #638.281-014, SVP 7, heavy per the DOT, medium as performed. Tr. 1956-57. The ALJ asked the VE to consider a hypothetical individual the same age as Plaintiff, with the same educational level and past work experience with the following limitations:
Further assume that this individual retains the capability of lifting 20 pounds occasionally, 10 pounds frequently, can stand 6 of 8 hours, walk 6 of 8 hours, and sit 6 of 8 hours. Pushing and pulling in the right lower extremity would be frequent. Occasional ropes, ladders, scaffolds, and balancing. Frequent ramps, stairs, stooping, kneeling, crouching, and crawling. Occasional exposure to hazards, dangerous moving machinery, and unprotected heights. This individual can only understand, remember, and carry out wrote [sic] and routine instructions or tasks that require the exercise of little independent judgment or decision making and can be learned from a short demonstration. This can be performed on a sustained basis, eight hours a day, five days a week, in two-hour increments, with normal breaks for an eight-hour day. This individual would require a low-stress work environment. And to -- and to define that, I'm talking about nonproduction work, no work that requires quotas, specifically no fastpaced work, like an assembly line, where one would have to produce a product in a high-speed manner. The -- this work can be performed on a sustained basis, eight hours a day, five days a week, in two-hour increments, with normal breaks. Contact with the public would be never. Contact with coworkers would be occasional.Tr. 1957. The ALJ asked if such an individual could perform any of Plaintiff's past work, as actually performed or as generally performed in the national economy, and the VE stated there would be no past work. Tr. 1958. The VE testified there would be other work and provided the following examples: garment sorter, DOT #222.687-014, SVP 2, light, with 55,000 jobs in the national economy; Checker I, clerical, DOT #222.687-010, SVP 2, light, 52,000 jobs in the national economy; and router, DOT #222.587-038, SVP 2, light, 50,000 jobs in the national economy. Id. The VE testified that her answer was consistent with the DOT and nothing was in conflict. Id. She noted that issues that fall outside of the DOT included “right versus left lower extremity, low-stress work environments, contact with others, bifurcating between types of climbing . . . or production and - and pace work, that's also based on [her] professional experience in the labor market.” Tr. 1958-59. The ALJ asked if there were any conflicts with the occupations identified in the hypotheticals compared with the DOT requirements and the limitations in the hypotheticals other than already stated, and the VE responded in the negative. Tr. 1959. The VE testified there were no conflicts between the reasoning level and the RFC, noting that all of the reasoning levels were reasoning level two. Id.
For his second hypothetical, the ALJ modified the first hypothetical as follows:
[T]his individual would have absences from the workstation on a daily basis, the duration of which would be in the sole discretion of this hypothetical individual. By way of illustration, this individual would be able to walk for 20 minutes and then need a break, outside of normal breaks, or stand 10 or 15 minutes and then need a break, outside of normal breaks, or sitting may be interrupted because of fatigue and necessitate breaks. These breaks would be in the sole discretion of this hypothetical individual. It could be ten minutes one day, it could be an hour another day, but it would continue all day long and in the durations that I just gave you.Id. The VE testified that “would preclude work.” Tr. 1960.
Plaintiff's attorney asked if there would be any competitive employment available if the hypothetical individual would miss more than three days of work per month on a regular basis, and the VE responded in the negative. Tr. 1960. Counsel asked if there would be any competitive employment if the hypothetical individual would be off task more than 15% of a working day, and the VE responded in the negative. Id. Counsel asked the VE to consider Jason Flassing's 2018 statement and asked if an individual is unable to interact with coworkers, supervisors, or customers on a frequent basis, would there be any competitive employment. The VE responded in the negative. Id. With no further questions, the hearing adjourned. Tr. 1960-61.
II. Discussion
A. The ALJ's Findings
In his August 24, 2022 decision, the ALJ made the following findings of fact and conclusions of law:
1. The claimant last met the insured status requirements of the Social Security Act on March 30, 2022.
2. The claimant did not engage in substantial gainful activity during the period from his alleged onset date of October 20, 2015, through the date last insured of March 30, 2022 (20 CFR 404.1571 et seq.).
3. Through the date last insured, the claimant had the following severe impairments: Anxiety, Depression, Post-Traumatic Stress Disorder (PTSD), and Right Ankle Dysfunction (20 CFR 404.1520(c)).
4. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, I find that, through the date last insured, the claimant had the residual functional capacity to perform light work as defined 20 CFR 404.1567(b) except the claimant can only push and/or pull frequently with his right lower extremity. The claimant can occasionally climb ropes, ladders, and scaffolds and occasionally balance. He can frequently climb ramps and stairs, stoop, kneel, crouch, and crawl. The claimant could have occasional exposure to hazards such as dangerous moving machinery and unprotected heights. The claimant can only understand, remember, and carry out rote and routine instructions or tasks that require the exercise of little independent judgment or decision-making and can be learned from a short demonstration. He can perform such work can be performed on a sustained basis 8 hours a day, 5 days a week, in two-hour increments with normal breaks for an eight-hour day. The claimant would require a low stress work environment, defined as no quota work and non-production work, specifically,
no fast-paced work like an assembly line where one has to produce a product in a high-speed environment. The claimant could never have contact with the public, but he could have occasional contact with coworkers.
6. Through the date last insured, the claimant was unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on August 28, 1970, and was 51 years old, which is defined as a younger individual age 18-49, on the date last insured. The claimant subsequently changed age category to closely approaching advanced age (20 CFR 404.1563).
8. The claimant has a limited education (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Through the date last insured, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569 and 404.1569a).
11. The claimant was not under a disability, as defined in the Social Security Act, at any time from October 20, 2015, the alleged onset date, through March 30, 2022, the date last insured (20 CFR 404.1520(g)).Tr. 1907-08, 1911, 1924-26.
B. Legal Framework
1. The Commissioner's Determination-of-Disability Process
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are “under a disability,” defined as:
inability engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less than 12 months[.]42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting “need for efficiency” in considering disability claims). An examiner must consider the following: (1) whether the claimant is working; (2) whether the claimant has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents the claimant from performing specific jobs that exist in significant numbers in the national economy. See 20 C.F.R. § 404.1520. These considerations are sometimes referred to as the “five steps” of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments (“the Listings” or “Listed impairments”) the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the listed impairments, found at 20 C.F.R. Part 404, Subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of the listed impairments for at least one year, he will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or be “at least equal in severity and duration to [those] criteria.” 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
A claimant is not disabled within the meaning of the Act if the claimant can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling (“SSR”) 82-62 (1982). The claimant bears the burden of establishing the inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the regional economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish the inability to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen, 482 U.S. at 146, n.5 (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of “any final decision of the Commissioner made after a hearing to which he was a party.” 42 U.S.C. § 405(g). The scope of that federal court review is narrowly tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See id., Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls v. Barnhart, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to “try these cases de novo or resolve mere conflicts in the evidence.” Vitek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005); see also Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (explaining that, “whatever the meaning of ‘substantial' in other contexts, the threshold for such evidentiary sufficiency is not high,” as it means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion”). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings, and that the conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed “even should the court disagree with such decision.” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
C. Analysis
Plaintiff alleges that the ALJ improperly evaluated the opinion evidence. Pl.'s Br. 1-2, ECF No. 15. The Commissioner argues that substantial evidence supports the ALJ's finding that PA Flassing's opinions deserved little weight. Def.'s Br. 11, ECF No. 18.
Plaintiff's Written Exceptions seeking remand of the ALJ's 2022 Decision addressed only one issue-that the “ALJ failed to recognize and resolve a conflict between the VE's testimony and the DOT” regarding SVP levels and the exemplar jobs. Tr. 2153. The Appeals Council found that Plaintiff's claims had no merit and there was no basis for changing the ALJ's decision. Tr. 1890. Plaintiff did not allege previously that the ALJ erred in his analysis of the opinion evidence as he now argues in his current Brief before the court.
1. Standards for Evaluating Opinion Evidence
Social Security regulations require that medical opinions in a case be considered together with the rest of the relevant evidence. 20 C.F.R. § 404.1527(b). “Medical opinions are statements from acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant's] physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(1). Statements that a patient is “disabled” or unable to work or meets the Listing requirements or similar statements are not medical opinions, but rather, are administrative findings reserved for the Commissioner. SSR 96-5p, 1996 WL 374183 at *2 (July 2, 1996). “However, opinions from any medical source on issues reserved to the Commissioner must never be ignored. The adjudicator is required to evaluate all evidence in the case record that may have a bearing on the determination or decision of disability, including opinions from medical sources about issues reserved to the Commissioner.” Id. at *3.
For claims filed on or after March 27, 2017, the regulations changed as to how adjudicators would consider and articulate medical opinions. See 20 C.F.R. § 404.1520c. Because Plaintiff's claim was filed prior to March 27, 2017, 20 C.F.R. § 404.1527 is applicable.
Generally, the opinions of treating physicians are entitled to greater weight than other evidence. “In many cases, a treating source's medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight.” SSR 96-2p, 1996 WL 374188, at *4; Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 106-07 (4th Cir. 2020). “However, ‘if a physician's opinion is. . . inconsistent with other substantial evidence, it should be accorded significantly less weight.'” Siders v. Comm'r of Soc. Sec. Admin., No. 21-2329, 2023 WL 4488259, at *2 (4th Cir. July 12, 2023) (citing Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001); 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4)).
SSR 96-2p was rescinded effective March 27, 2017 for claims filed on or after March 27, 2017 because of revisions to the final rules including that “adjudicators will not assign a weight, including controlling weight, to any medical opinion for claims filed on or after March 27, 2017.” See 2017 WL 3928305. However, because this claim was filed prior to that date, SSR 962p is applicable.
If a treating source's opinion is not given controlling weight, then the following factors must be considered with respect to each medical opinion: (1) examining relationship; (2) treatment relationship, including the length of the treatment relationship, frequency of examination, and the nature and extent of the treatment relationship; (3) supportability, that is, the evidence presented to support the medical opinion; (4) consistency, that is, how consistent the medical opinion is with the record as a whole; (5) specialization; and (6) other factors. 20 C.F.R. § 404.1527(c). “While an ALJ is not required to set forth a detailed factor-by-factor analysis in order to discount a medical opinion from a treating physician, it must nonetheless be apparent from the ALJ's decision that he meaningfully considered each of the factors before deciding how much weight to give the opinion. Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 385 (4th Cir. 2021).
While an ALJ is under no obligation to accept any medical opinion, he must nevertheless explain the weight afforded such opinions. See SSR 96-2p, 1996 WL 374188, at *5 (July 2, 1996). “Where there are multiple opinions from a single source, an ALJ does not necessarily have to discuss each opinion separately to make clear the weight given it and the underlying reasons.” Bryant v. Colvin, No. 5:11-CV-648-D, 2013 WL 3455736, at *5 (E.D. N.C. July 9, 2013) (citing SSR 96-2p, 1996 WL 374188, at *2). “‘[T]he opinions of a treating physician are not entitled to great weight where they are contradicted by the physician's own treatment notes, or by other evidence.' Nor will an ALJ ‘give any special significance to the source of an opinion on issues reserved to the Commissioner,' including the residual functional capacity.” Bryant v. Colvin, No. 8:14-CV-02087-TLW, 2015 WL 5783813, at *2 (D.S.C. Sept. 28, 2015).
Under the Social Security regulations, impairments may only be established with evidence from “acceptable medical sources,” which includes the opinions of licensed physicians. 20 C.F.R. §§ 404.1502, 404.1513(a). Social Security Ruling 06-3p instructs ALJs to consider evidence from sources other than “acceptable medical sources,” such as the opinions of physician assistants, because such “other sources” evidence “may provide insight into the severity of the impairment(s)” established by acceptable medical sources. SSR 06-3p, 71 Fed.Reg. at 45,594. Under this ruling, an ALJ may assign weight to the opinions of
certified physician assistants based on factors that indicate reliability and expertise. See id. at 45,595-96. The ruling also instructs that ALJs “generally should explain the weight given to opinions from these ‘other sources.'” Id. at 45,596.Jones v. Berryhill, 681 Fed.Appx. 252, 255-56 (4th Cir. 2017).
The responsibility for weighing evidence falls on the Commissioner, not the reviewing court. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). “An ALJ's determination as to the weight to be assigned to a medical opinion will generally not be disturbed absent some indication that the ALJ has dredged up ‘specious inconsistencies,' or has not given good reason for the weight afforded a particular opinion.” Koonce v. Apfel, 166 F.3d 1209 (4th Cir. 1999) (per curiam) (unpublished) (internal citation & quotation omitted); see also 20 C.F.R. § 404.1527(d)(2). In undertaking review of the ALJ's treatment of a claimant's medical sources, the court focuses its review on whether the ALJ's decision is supported by substantial evidence.
a. 2017 Opinion of Jason Flassing, PA-C
Mr. Flassing is a physician's assistant with a certification in psychiatry who began treating Plaintiff in 2016. See Tr. 2215. Under the regulations in effect at the time of Plaintiff's claim, a physician's assistant was not an acceptable medical source, but was considered an “other source.” 20 C.F.R. § 404.1513(d)(1). The regulation was revised effective March 27, 2017; as Plaintiff's claim was filed prior to that date, the earlier version of the regulation is applicable.
On October 24, 2017, PA Flassing completed a South Carolina Department of Social Services (“DSS”) Medical Release/Physician's Statement (“Physician's Statement”) questionnaire used when persons are applying for benefits from DSS. Tr. 1530-31. The Physician's Statement indicated that Plaintiff's disability was permanent, and that he was unable to work or participate in activities to prepare for work. Tr. 1530. PA Flassing indicated that during a workday the maximum number of hours Plaintiff could sit was eight hours; he could stand, walk, kneel/squat, and push/pull for two hours each; but he could not climb stairs/ladders, bend/stoop, keyboard, or lift/carry. Id. PA Flassing noted Plaintiff's primary disabling diagnosis of major depressive disorder, secondary disabling diagnosis of general anxiety disorder, and commented that Plaintiff's symptoms were severe and chronic. Tr. 1531.
b. PA Flassing's 2018 Opinion
On August 27, 2018 PA Flassing was interviewed by Plaintiff's counsel who memorialized the interview in a statement. Tr. 1773-74. In the statement, PA Flassing indicated that in the past Plaintiff had serious alcohol problems, and he still had serious mental problems. Tr. 1774. At the time of the statement, Plaintiff had been sober for one year. Id. He noted that “despite significant medication” Plaintiff “exhibited fairly extreme signs of psychological disturbance, including frequent interruption of concentration and focus, spontaneous, frequent tearfulness and hyperventilation, blank stares, and frequent dissociative episodes, during which he can't speak and gets confused about what we are talking about.” Id. PA Flassing opined that Plaintiff would not be able to “reliably interact with coworkers, customers, or supervisors.” Id. He also opined that there was a “significant risk that the additional stress of an 8-hour work day with its demands of production and interaction with supervisors and coworkers would push him towards alcohol or suicide.” Id. He noted that due to the severity of Plaintiff's condition, in May the intensity of his outpatient treatment program was increased. Id. PA Flassing noted that while Plaintiff had significant physical problems, he was not examined or treated for those problems. Id.
c. PA Flassing's 2022 Opinion
Plaintiff's counsel once again interviewed by PA Flassing and memorialized that interview in a July 27, 2022 statement. Tr. 2214-15. In the statement, PA Flassing explained that when he described Plaintiff as having a normal status on mental examination, he meant that Plaintiff's behavior was “normal in the sense of his previous presentation. His baseline, or the observations I describe as normal on a mental status finding, is significantly deficient from the general population.” Tr. 2215. PA Flassing conceded that his “treating notes are not the best documentation of [Plaintiff's] chronic conditions” and his normal findings “should not be taken to indicate that [Plaintiff] is capable of working at any job on a full-time basis.” Id. PA Flassing opined that Plaintiff would be “off task more than 15% of a working day which is consistent with the previous statement that I made. His chronic anxiety makes it difficult for him to interact with coworkers, supervisors, and the general public.” Id. PA Flassing indicated that despite medication, Plaintiff's condition remained chronic and treatment resistant. He opined that Plaintiff would miss more than three days of work per month as his PTSD, depression and panic disorder would negatively affect his ability to attend work. PA Flassing noted that Plaintiff has “been so limited since at least 2016.” Id.
2. The ALJ's Consideration of PA Flassing's Opinions
In his 2019 Decision the ALJ discussed PA Flassing's August 2015 and October 2017 opinions, and also noted that he was “not an acceptable medical source nor is he a treating source with respect to the claimant's physical impairments.” Tr. 20, 1975.
The ALJ gave “little weight” to PA Flassing's 2017 opinion that Plaintiff was permanently disabled and had postural limitations noting that, although he considered the opinion, whether an individual is disabled is an issue reserved to Commissioner. Tr. 1920. The ALJ cited to PA Flassing's lack of explanation for activity restrictions, his acknowledgment that he did not treat or examine Plaintiff for physical problems, and his report that Plaintiff's medications were effective. Tr. 1920-21. As to the 2018 opinion that Plaintiff would not reliably interact with coworkers, customers, or supervisors the ALJ gave “some weight” to the opinion that Plaintiff should not interact with the public, finding it consistent with the evidence of record, but the ALJ determined, based on the record evidence, that Plaintiff could have some interaction with coworkers and supervisors. Tr. 1921. The ALJ also found PA Flassing's opinion that Plaintiff had limited ability to meet production demands was “somewhat supported by the evidence” and cited to examples from Plaintiff's medical history. Id.
To support his findings the ALJ cited to numerous treatment records from other medical providers, not just from PA Flassing, including Dr. Sanchez (2F/3), Dr. Stone (4F/6), Dr. Johnson (4F/92), Dr. Gettys (7F/41), Dr. Marcum (8F/10), Dr. Trott (14F/179), and Dr. Loring (28F/1).
The ALJ gave little weight to PA Flassing's 2022 opinion that Plaintiff “would be off task more than 15% of a workday, would miss more than three days of work per month, and he would have difficulty interacting with coworkers supervisors, and the general public (31F/2).” Tr 1921. The ALJ stated that those “opinions are given little weight because they are not supported by Mr. Flassing's treatment notes of the claimant, despite his protestations to the contrary.” Id. The ALJ also noted that “Mr. Flassing opines . . . the claimant will be off task, would miss more than three days per month and his depression and panic disorder would negatively affect the ability to attend work without providing any reference to evidence that would support those conclusions. To the contrary records would suggest the claimant is capable of full-time work and ability to persist without being off task.” Tr. 1922. The ALJ also cited to other medical evidence that could provide “inferences” of Plaintiff's ability to work, including evidence indicating lack of adverse effects from medication or reports of no acute distress. Tr. 1923.
3. Discussion
Plaintiff argues that the “ALJ has failed to provide adequate rationale to support his conclusions that Mr. Flassing's opinions were entitled to little weight.” Pl.'s Br. 37. The Commissioner contends that “the ALJ offered many valid reasons supported by substantial evidence to explain why P.A. Flassing's opinions deserved little weight.” Def.'s Br. 11.
As indicated above, the Social Security regulations applicable to Plaintiff's claim distinguish between “acceptable medical sources” and “other sources.” Acceptable medical sources include, for example, licensed physicians and psychologists, while other non-specified medical providers, including physician's assistants, are considered “other sources.” 20 C.F.R. § 404.1502. As an “other source,” PA Flassing is not a “treating source,” nor are his opinions “medical opinions.” See SSR 06-03p (indicating that only acceptable medical sources can establish the existence of a medically determinable impairment, give medical opinions, and be considered treating sources whose opinions may be entitled to controlling weight); see also Dawkins v. Berryhill, No. 8:16-CV-3111-CMC-JDA, 2018 WL 3133420, at *9 (D.S.C. Jan. 29, 2018), report and recommendation adopted, No. 8:16-CV-3111-CMC, 2018 WL 1166096 (D.S.C. Mar. 6, 2018)(citing Jones v. Soc. Sec. Admin., No. CIV. 3:13-1204, 2015 WL 1235039, at *6 (M.D. Tenn. Mar. 17, 2015) (observing that nurse practitioners and “other sources” are not “qualified to render medical opinions”); Hatfield v. Astrue, No. 3:07-CV-242, 2008 WL 2437673, at *2 (E.D. Tenn. June 13, 2008) (“Accordingly, a nurse practitioner's opinion, as ‘other source' evidence, is not given the same controlling weight as a ‘treating source.'”)). Furthermore, as an “other source,” PA Flassing's opinions are “not subject to any special degree of deference.” Dawkins v. Berryhill, 2018 WL 3133420 at *9 (citing Meuzelaar v. Comm'r of Soc. Sec., No. 15-2341, 2016 WL 2849305, at *2 (6th Cir. 2016) (holding that “the opinion of a nurse or a nurse practitioner-is entitled to less weight than a physician's opinion because a nurse is not an ‘acceptable medical source'”); Noto v. Comm'r of Soc. Sec., 632 Fed.Appx. 243, 248-49 (6th Cir. 2015) (“The opinion of a ‘non-acceptable medical source' is not entitled to any particular weight or deference-the ALJ has discretion to assign it any weight he feels appropriate based on the evidence of record.”)).
The later version of this regulation effective for claims filed on or after March 27, 2017 provides that a “Licensed Physician Assistant for impairments within his or her licensed scope of practice” qualifies as an acceptable medical source. As Plaintiff's claim was filed in 2016, the former version-defining a physician's assistant as an “other source”-is applicable.
The ALJ considered PA Flassing's opinions and adequately explained the weight given to the opinions sufficient to allow the court to follow his reasoning. The undersigned recommends finding that the ALJ's decision to give limited weight to the opinions of PA Flassing is supported by substantial evidence. “Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains ‘sufficien[t] evidence' to support the agency's factual determinations.” Biestek v. Berryhill, 139 S.Ct. at 1154. Here, the ALJ cited the records and opinions of other treating physicians as well as PA Flassing's own prior treatment notes that were inconsistent with his opinions that Plaintiff was disabled.
The court may not substitute its judgment for the Commissioner's and the undersingned recommends finding that the ALJ's conclusions are comfortably within the bounds of the substantial evidence standard. See Craig, 76 F.3d at 589 (stating that the court may not “undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]”); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (holding that it is the ALJ's responsibility, not the court's, to determine the weight of evidence and resolve conflicts of evidence).
III. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the undersigned recommends that the Commissioner's decision be affirmed.
IT IS SO RECOMMENDED.
6.The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”